Ezel / Ethics Opinions / MBAR
MBAR May 25, 2005

Can a lawyer represent a client's son in a guardianship petition against that same long-time client?

Short answer: No, on these facts. The lawyer would be adverse to a current or former client and could not satisfy the consent requirements of Rules 1.7 and 1.9, and she is also likely to be a necessary witness, which Rule 3.7 bars.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer's long-time client had a deteriorating mental condition, and a psychiatrist who recommended guardianship asked the client's son to retain the lawyer for the guardianship proceeding because of her long history with the client. The lawyer asked whether she could represent the son, and whether a medical certificate of the client's incapacity would change the answer. The committee frames the issue under Mass. R. Prof. C. 1.14, which directs a lawyer to maintain a normal relationship with an impaired client as far as possible but also lets the lawyer take protective action, including seeking a guardian, when the client is at risk of substantial harm.

The committee does not decide whether Rule 1.14 ever permits a lawyer to represent a family member petitioning for a guardianship, because two independent grounds resolve this inquiry. First, the facts indicate the client may want to contest the guardianship, so by representing the son the lawyer would be adverse to a current client (or a former client in a substantially related matter) in violation of Rule 1.7 or Rule 1.9. The committee concludes the consent requirement of those rules could not be met, particularly given the lawyer's own view of the client's capacity, and the representation would involve using confidential information about the client's neglect of his affairs against him.

Second, the committee points to Rule 3.7. The son knows the lawyer favors guardianship and why, so the son may want her to testify, and she might be willing to do so. If the lawyer is likely to be a necessary witness in litigation over the guardianship, Rule 3.7 is a separate reason she should not act as the son's advocate, because none of that rule's exceptions appear to apply.

In practice

Under this opinion, conduct in which a client's own lawyer represents a family member seeking a guardianship over that client is not permitted where the client may contest the petition and the consent requirements of Rules 1.7 and 1.9 cannot be met. Per the opinion, the bar is reinforced where the lawyer is likely to be a necessary witness, because Rule 3.7 then independently disqualifies her. The committee describes the lawyer's available protective options under Rule 1.14 (consulting family members or others, and seeking appointment of a guardian) without resolving whether she could herself represent the petitioner.

Common questions

Q: Can I represent a client's family member who wants a guardian appointed for my client?

A: The opinion does not decide that question in general, but it holds that on these facts the lawyer cannot, because the client may contest the petition and the conflict rules and the witness rule both bar the representation.

Q: Why can't the lawyer just get the client's consent to the conflict?

A: The committee concludes the consent requirement of Rules 1.7 and 1.9 could not be met, particularly given the lawyer's own view that the client lacks capacity, so consent could not be relied on even in the unlikely event it was obtained.

Q: How does the witness rule apply?

A: Because the lawyer favors guardianship and the son knows why, she is likely to be a necessary witness. Rule 3.7 bars a lawyer from acting as advocate at a trial where she is likely to be a necessary witness unless an exception applies, and the committee finds none here.

Background and rules framework

The opinion interprets Mass. R. Prof. C. 1.14 (client with diminished capacity; protective action), Rule 1.7 (concurrent conflicts) and Rule 1.9 (duties to former clients), and Rule 3.7 (lawyer as witness). These correspond to the Model Rules of the same numbers.

Citations and references

Rules of Professional Conduct:

  • Model Rule 1.14 / Mass. R. Prof. C. 1.14 (client with diminished capacity)
  • Model Rule 1.7 / Mass. R. Prof. C. 1.7 (concurrent conflicts of interest)
  • Model Rule 1.9 / Mass. R. Prof. C. 1.9 (duties to former clients)
  • Model Rule 3.7 / Mass. R. Prof. C. 3.7 (lawyer as witness)

See also

Source

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